As part of a Background Briefing series on mental illness in the work place, Di Martin spoke to Justice Shane Marshall of the Federal Court. In an Australian first, the judge spoke candidly about his struggles with depression and the mental health issues that face the legal profession.

In what’s believed to be an Australian first, a sitting judge has agreed to be interviewed about his struggle with depression.

Justice Shane Marshall has been a Federal Court judge for 20 years.

‘I was first diagnosed with depression in 2008 and was given a mild antidepressant and some strategies for recovery by a psychologist,’ he told Background Briefing.

According to Justice Marshall, the heavy responsibilities of being a senior judge contributed to his illness.

‘The full complement of judges in the Federal Court in Victoria was 13. We were running at 10. I was looking after Tasmania as well,’ he said.

‘I remember coming back from holidays, coming back sick, and just continuing to work sick, being in a hotel room in Hobart and not been able to sleep because every time I coughed it felt like there was a knife going through my back, and then having to sit there and listen to submissions and then write the judgement. It was just relentless.’

The legal profession is renowned for high rates of mental illness—surveys showone in three lawyers and law studentssuffer depression. Justice Marshall says the pressures are getting worse.

‘One is almost tempted to go to law school and put up a sign up:”Beware: toxic profession.”’

While lawyers and some high profile barristers have revealed they live with a mental illness, there are few judges who have ever spoken publicly about the issue, and none that have been interviewed to the knowledge of Background Briefing.

Justice Marshall said the intense stigma around revealing a mental illness meant he went undiagnosed until seven years ago when a friend insisted he seek help.

‘I had a very supportive doctor who threatened to drag me to a psychologist connected to his practice if I didn't make the first appointment; but for that I probably would never have gone.’

Justice Marshall wants to break the silence around mental health on the bench, and to challenge the stigma that prevented him from seeking assistance.

‘I was just too proud to go to the chief justice and say I need help. Part of that was just the way I was brought up,’ he said.

‘Dad was a wharfie and Mum was a migrant factory worker. I was taught never to show any sign of weakness, just if there was an issue to tough it through.’

This article represents part of a larger Background Briefing program. Listen to the full report on Sunday at 8.05 am, repeated on Tuesday at 9.05pm.

Justice Marshall specialized in industrial relations law at the bar before being appointed to the bench by the Keating government in 1995.

With his working class background and frequent representation of unions, Justice Marshall’s appointment was not universally welcomed.

‘There was a feeling in some of the legal establishment that this person had come from an industrial relations background, who acted on the union side of the fence, had no right being on the Federal Court when the silks around coveted that job,’ he said.

‘So there was a lot of whispering and I suppose people who weren’t very happy about it.’

Justice Marshall says he worked three times as hard to overcome his symptoms, and no issues have been raised with either his judgments or his conduct on the bench. He says mental illness is no different from any chronic physical condition that needs to be managed with medication.

Two of his colleagues haven’t spoken to him since he first spoke up about his depression, however.

‘I don't know whether that's disapproval or they find it difficult to deal with it, or I have inadvertently offended them in some other way.’

Justice Marshall mentors young lawyers, and is worried about the growing pressures they face. He says that with an increased number of law schools, competition for jobs is intense.

Mental illness is now the main reason Australian workers take extended sick leave or become incapacitated. The costs are estimated to be close to $10 billion a year and growing, and reforms are being held back by stigma and prejudice. Di Martin reports.

He told Background Briefing about a conversation he had with a senior partner from a top tier law firm, who expressed alarm about mental health issues among recent graduates.

‘Mainly young lawyers coming to [the firm] from law school with issues, developing issues and not responding well to pressures of billable hours and the like,’ Justice Marshall said.

According to the judge, billing clients by the hour creates unnecessary stress, especially on young lawyers wanting to impress their seniors. It is his opinion that billable hours are ridiculous and should be abolished.

‘It was never there in the old days when I was an article clerk and young solicitor. We just did what we had to do. Sometimes I think it means that work that could be done in shorter times is stretched out to get more billable hours. I have no proof of that, but I suspect it.’

He has been told of several instances of abusive behaviour by partners and associates. In the past, Justice Marshall has reprimanded barristers for bullying their junior staff in his court.

He has also talked to former Federal Court judges about their bullying from the bench.

‘I have made a comment to them that I didn't think that that was the appropriate way to go. It wasn't fair on [lawyers], and we had power, immense power over them, and we could shatter someone by our reaction to them, particularly junior practitioners.’

Justice Marshall’s is no longer hearing cases, and made hislast judgementin November last year, granting native title to the Ngadju people in Western Australia’s goldfields area.

‘I think the court room still isn't totally a safe place in which to do work unfortunately.’

Justice Marshall is now on leave pending retirement later this year. He told Background Briefing that anyone in the legal profession who is struggling should not soldier on like he did.

‘Seek assistance. If you are not enjoying anything in life, if you feel totally overwhelmed, if you feel that you're not getting adequate support, if you're finding it hard to get up in the mornings, hard to concentrate, if life is a real struggle—reach out.’

If this program has raised concerns, or if you need support contact Lifeline, 13 11 14 or Beyond Blue 1300 22 4636

Background Briefingis investigative journalism at its finest, exploring the issues of the day and examining society in a lively on-the-road documentary style.

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Transcript

Di Martin: Toxic workplaces, where injuries aren't physical, they're psychological. But the damage is just as crippling as being left in a wheelchair. Like the case of a Victorian high school teacher who's recently been awarded $1.3 million in damages by the state's Supreme Court.

Michael Magazanik: The judge found that he is sufficiently damaged that he is not going to work again. So it's a real and profound psychiatric injury.

Di Martin: Lawyer Michael Magazanik represented Peter Doulis in the landmark legal case. He says the school ignored Mr Doulis's pleas to reduce his teaching load of some of the toughest kids, a school where 1 in 5 had been suspended.

Michael Magazanik: And these weren't suspensions for smoking behind the shelter sheds or truancy or being late, these were for things like constructing flamethrowers, stomping on teachers' cars, sexually inappropriate behaviour in class. A big student bashed a teacher from behind, knocked him out, I think he lost teeth. And a large number of those students appeared in Peter's classes over the years.

Di Martin: More on that story in a moment.

On Background Briefing last week we heard about the high rates of suicide and psychological injury in the medical profession. But the problem of poor mental health extends across all industries. Mental illness is now the main reason an Australian worker is incapacitated, according to new research being prepared by leading psychiatrist and researcher Sam Harvey.

Sam Harvey: Almost across the board mental health is now the main reason for people not being able to work, either a long-term sickness absence, or on incapacity benefits.

Di Martin: Dr Harvey says the days when only physical injuries would cripple a worker are long gone.

Sam Harvey: If we look at incapacity benefits, so this is where an individual is so unwell that they are unlikely to work again in the foreseeable future, over the last 10 years the number of incapacity benefits for mental health, both as an absolute number and as a relative proportion of all incapacity benefits, has been slowly increasing.

Di Martin: And that's just the people who end up on disability pensions. There's also growing concern about workers compensation. Sam Harvey says psychological injuries are far more expensive because of the much longer recovery times. He says there's a rule of thumb that mental illness makes up about 10% of claims, yet they chew up a third of workers compensation budgets. And that's just the beginning of costs to the Australian economy.

Tony LaMontagne: Comp claims of course are expensive, but the costs are much bigger than that. Costs are sickness absence, turnover, that is employee replacement, retraining people, presenteeism…

Di Martin: That's when you're at work, but you're not really.

Tony LaMontagne: That's right. What presenteeism means; you are at work but you're not working at full capacity. So I think what's in the claims is only the tip of the iceberg.

Di Martin: This is Deakin University's Tony LaMontagne. He says there's huge stigma attached to making a worker's compensation claim. Professor LaMontage says for every claim in Victoria for example, there are 30 other cases of depression caused by job strain or job stress.

Tony LaMontagne: I'm talking about the cases of depression attributable to job strain. We can estimate just from job strain, there are approximately 21,000 cases of depression in the Victorian working population. How many claims are there? 700. So, 30 times less.

Di Martin: Tony LaMontagne says like asbestos, mental health in the workplace has been largely invisible, and often ignored as a health and safety problem. He says the difference between the two is the size of the mental health issue.

Tony LaMontagne: I would say that it's much bigger than asbestos. Asbestos is a terrible story, as any listener will know, but it did tend to affect a small proportion of the working population. With mental health in the workplace, things like job control, demands, workload, job security, those things can affect every single working person. We're not talking about a fraction of the population here, we're talking about the whole working population, and much of it is still going unnoticed.

Advertising campaign: If I told you there's an issue that costs Australian business $10.9 billion every year and likely affects 1 in 5 of your people, wouldn't you want to uncover it?

Di Martin: Despite a number of high profile ad campaigns to improve mental health in the workplace, progress has been limited. More people now recognise it's a problem. But the stigma of revealing a mental illness seems to be stuck like a barnacle, seriously undermining reform efforts. Workers fear discrimination, and with good reason. A recent survey of employers revealed that two out of five won't hire someone with a mental illness.

A 20-year veteran of the Federal Court bench wants to break open this stigma, particularly in the legal profession. At a National Wellness for Law Forum in Canberra this month, Justice Marshall talked openly about his experience of depression, and how a punishing work schedule contributed to his illness.

Shane Marshall: The full complement of judges in the Federal Court in Victoria was 13. We were running at 10. And I was looking after Tasmania as well. And I remember coming back from a holiday, coming back sick, and just continuing to work sick, being in a hotel room in Hobart and not been able to sleep because every time I coughed it felt like there was a knife going through my back, and then having to sit there and listen to submissions and then write the judgement. It was just relentless.

Di Martin: The legal profession is renowned for high rates of mental illness. Surveys show that 1 in 3 lawyers has experienced depression due to overwork, intense pressures and deadlines. Justice Marshall has also witnessed bullying in his courtroom.

Shane Marshall: Unfortunately what I have seen male senior counsel do to female junior solicitors is to embarrass them and admonish them in front of the court for handing out the wrong document or giving them the wrong document. To embarrass the QC I said, 'Oh, thank your junior, she is doing a wonderful job in assisting you.' [laughs] But I think the court room still isn't totally a safe place in which to do work unfortunately.

Di Martin: It's a striking observation from a sitting judge.

After the speech, Justice Marshall told Background Briefing that bullying has extended to the bench, including by Federal Court judges.

Shane Marshall: There's been instances where I have observed members of full courts a long time ago perhaps have a bit too much of a robust attitude to counsel, especially very junior counsel, and I have in the past made a comment to them that I didn't think that that was the appropriate way to go, that it wasn't fair on them, and that we had power, immense power over them, and we could shatter somebody by our reaction to them, especially a junior practitioner.

Di Martin: How was that comment received?

Shane Marshall: Not very well. [laughs]

Di Martin: Do you think it made a difference?

Shane Marshall: Well, there was less intervention in the afternoon.

Di Martin: This is Justice Shane Marshall's first interview about high rates of mental illness in the law. But as we hear later in the program, it is also believed to be the first time a sitting Australian judge has openly discussed his own experience of depression on the bench. Justice Marshall says the law's already intense pressures are getting worse.

Shane Marshall: Undoubtedly. Undoubtedly. One is almost tempted to go to law school and put up a sign up, 'Beware: toxic profession.' [laughs]

Di Martin: That's coming up.

But first to a landmark court case in Victoria where a high school teacher was awarded $1.3 million in damages for being psychologically injured at work, a case that's captured national attention.

Journalist [archival]: This Tuesday a million dollar payout to a Victorian teacher could open the way for other employees to sue for damages…

Di Martin: Peter Doulis was so profoundly injured while teaching at Werribee Secondary College that he will never teach again.

Michael Magazanik: Just let me find the page, because there is a page where the judge says what medications Peter was on during the trial.

Di Martin: Slater and Gordon's Michael Magazanik acted for Peter Doulis, and says his client is still too unwell to be interviewed about what happened.

At Werribee Secondary College, each year-group is split into classes based on academic ability, from the high achievers to the bottom classes. Michael Magazanik says his client was saddled with too many of the school's toughest kids.

Michael Magazanik: It's in a part of Melbourne where there are a lot of kids at risk, with difficult personal circumstances, learning disabilities and so on. And it was clear that these bottom classes were going to be full of very, very challenging kids. Peter had more of these classes on his own, by a good margin, than any other teacher. And that was an enormous load.

Di Martin: Michael Magazanik says to win the case, they needed to prove that Peter Doulis warned the school that this workload was putting his health in danger.

Michael Magazanik: In 2003 when matters came to a head at Werribee and he complained to the principals that his health was suffering, he wrote a letter, he had another teacher approach the principals on his behalf, he explicitly brought it to their attention, he made it crystal clear to them. Still they wouldn't lighten his load of these difficult classes. They didn't give him a second class teacher, they didn't give him time off, and they didn't substantially moderate his timetable for the next year. So when he came back in 2004 under the same sorts of pressures, everything collapsed pretty quickly and he went off, and he went off on WorkCover.

Di Martin: The school argued that Peter Doulis's health was suffering not because of his workload, but because of personal problems, that he was worried about financial issues, and he was sleep deprived from a waking baby.

Michael Magazanik: The college's main defence was that, yes, we saw that Peter was in some sort of decline, he was coming to school looking the worse for wear, he was struggling with his classes, but he had a new baby and we all thought that his problems were related to his lack of sleep. Now, a great percentage of people go through a lack of sleep with new babies and it very rarely ends in serious injury.

Di Martin: Sure, but it's a difficult thing to determine in psychological injury claims what portion is from your personal circumstance, and what portion is actually from work.

Michael Magazanik: It's not difficult when your employee…and, look, the evidence was that Peter told them that it was about his classes, and Peter's friend, another school teacher, told the principals that it was about his classes, and his psychologist's evidence was it was about his classes, and that Peter relayed that to the principals.

Di Martin: What were his injuries?

Michael Magazanik: He's suffered depression, he's had psychotic episodes, he's been hospitalised for his own protection. There were long periods where he couldn't leave his home. And the judge found that he is sufficiently damaged that he is not going to work again. So it's a real and profound psychiatric injury.

Di Martin: And yet WorkCover, who had been providing payments after Peter Doulis left the Werribee College, they cut him off. And in fact I think one of their assessments says that he was okay to return to work.

Michael Magazanik: Well, he clearly wasn't.

Di Martin: Since the Doulis decision, Slater and Gordon have been contacted by many others wanting to run similar cases. The firm took on two more teachers from Werribee Secondary College. One has just settled her claim for a six-figure amount. The Victorian WorkCover Authority defended the Doulis case. The Authority is quick to point out a third Werribee teacher has withdrawn his case, so Peter Doulis has not set a strong precedent. The Authority has just been rebadged as Vic Worksafe, and its General Counsel is Leanne Hughson.

Leanne Hughson: We're not expecting this case to open the floodgates, and each case is really relevant to its own facts.

Di Martin: This man, Mr Peter Doulis, was awarded damages for future loss of income until the age of 65. Essentially the judge found he couldn't work again. And yet he was cut off Vic WorkCover compensation payments. What happened there?

Leanne Hughson: Any injured worker who goes back to work goes through an assessment process and that is not done by Worksafe. We engage independent medical experts to inform us about the worker's capacity to return to work. And he was found to have capacity to return to work.

Di Martin: It was a failure though, wasn't it.

Leanne Hughson: I really can't comment on whether it was a failure or not, I'm not an expert in medical matters. But we made the decision that we made at that time on the available evidence and on the medical report that we had at that time.

Di Martin: Slater and Gordon says overall Vic Worksafe was particularly aggressive fighting this case, knocking back an offer to settle for a fraction of the eventual payout.

Michael Magazanik: The WorkCover authority had, in my view, a blinkered, blind, ruthless, remorseless approach to the case where they were going to litigate it to the very end. Peter had offered to settle his claim for a fraction of what he ultimately received. He ultimately received about $1.3 million in court after a long contested trial. I can't say precisely what he offered to settle for, but it was a small fraction of that.

Di Martin: Background Briefing understands the offer was for $250,000, a fifth of the eventual payout.

Several lawyers have told this program that WorkCover authorities aggressively fight psychological injury claims, not only because of the big costs involved, but some say to deter other would-be claimants. Vic Worksafe denies that's the reason it knocked back Peter Doulis's offer to settle. Here's General Counsel Leanne Hughson:

Leanne Hughson: There were some difficulties with the worker's case, without going into any detail, that we felt warranted us to defend the matter.

Di Martin: Peter Doulis's lawyer, Michael Magazanik, said that the legal defence was particularly and unusually aggressive considering the strength of his client's case.

Leanne Hughson: Look, 'aggressive' is probably too strong word. Our legal approach has never altered. Under our laws we do everything that we are required to do in terms of making good decisions around the entitlements that injured workers are due. Sometimes we are in disagreement about that, and those matters appropriately go before a court.

Di Martin: But if a worker has to rely on the court system, the wait for compensation is long and difficult. It's a powerful deterrent.

Slater and Gordon's Michael Magazanik:

Michael Magazanik: Peter had a ten-year journey between stopping work at Werribee Secondary College and being compensated for the injury that he suffered. That is a full decade during which he battled with a serious psychiatric injury the entire time. So it is hard to pursue your legal rights when you are at such an inbuilt disadvantage.

Di Martin: It was difficult to find an employer and their worker who would be interviewed about a psychological injury claim. After many enquiries a not-for-profit organisation agreed. Mind Australia runs a mental health recovery centre in Melbourne's south east. It's a 24-hour facility where clients stay when they're not coping at home, but are not ill enough for a psychiatric hospital.

As we heard last week on Background Briefing, trainee psychiatrists are at risk of psychological injury, as are many others in the mental health industry.

Galadriel Scott is a mental health support worker at Mind Australia.

Galadriel Scott: This particular industry, the mental health industry, we lose a lot of really good workers because that inability to feel like they can express their mental health problems. People don't go on WorkCover; they leave. Or other things fall apart in their lives.

Di Martin: It seems odd that a mental health worker would struggle with stigma. But Galadriel Scott didn't want to reveal her own growing mental illness, which was triggered by client behaviour at the Mind Australia centre.

Galadriel Scott: We had a client here who was quite psychotic and quite scared as well. They had delusions about people harming them and paedophiles harming them. So right around that time we also had quite a lot of self-harming incidents and suicidal behaviour from people. So all in all I guess I started to feel more anxious about coming to work, and more depressed that I was feeling so anxious coming to work.

Di Martin: So what happened?

Galadriel Scott: I did soldier on because I guess for me, my work ethic is that you keep going, you take as little time off as possible. And I think also I didn't want to go too much into it with my supervisors because I guess I was a bit afraid that they would feel that I wasn't coping well in my job. So I just pushed it and pushed it all the way to the edge.

Di Martin: Galadriel Scott tried to work through her illness with her GP.

Galadriel Scott: I went off on leave. I didn't want to go on WorkCover because I thought that that would be bad for me work-wise. I felt a lot of stigma about going on WorkCover. I thought if I can just take enough time off I can get through it, so I used up all of my sick leave, all of my annual leave, and then just came back to work.

Di Martin: But not for long. She was prescribed the wrong medication, which exacerbated her illness.

Galadriel Scott: Basically I just got worse and worse. I also found that in that deepest pit of depression I really thought that I wouldn't be able to work again.

Di Martin: Galadriel Scott was diagnosed with post-traumatic stress disorder, and eventually she did go on WorkCover. Galadriel says that experience was mixed. She was shocked that there was a three-month wait before the WorkCover Authority assessed her claim and payments started to come through. She says that wait would deter others from seeking help.

Only about a third of workers with a psychological injury return to the same workplace. But in Galadriel Scott's case, her return to Mind Australia has been successful. Galadriel's return to work was managed by Juliet Panozzo.

Juliet Panozzo: With Galadriel's case she wanted to do some admin work, so we tried to find a role that we could offer her. And because it is limited for us with our funding, because we are not-for-profit, so we had to create a role for Galadriel, so we got her into one of the services and she was doing admin work, and very soon got her confidence up quite quickly and was asking to go back to her place of work.

Di Martin: Juliet Panozzo has worked on many psychological injury cases, and says it's not always obvious how best to get someone safely back to work.

Juliet Panozzo: Every case is different, every person is different. So sometimes we think we get somebody to a place where we think great, they are ready to start. And they come in day one and it doesn't work. And then we sit back and think, where did we go wrong, what do we do? And to be honest that is the hard part, it's trying to get it right.

Di Martin: Both Juliet Panozzo and Galadriel Scott say their industry still has a lot to learn to better protect the mental health of staff. Galadriel wants far more information available to other workers and their managers about warning signs, better communication, and how to navigate a claim, so her experience is not repeated in future.

Galadriel Scott: I think everyone is very conditioned. That don't want to say, 'I'm sick mentally, so I have to take time off.' It feels like that is a weakness to admit that. If that can happen in a mental health industry, that somebody feels like they can't actually say they are having depression or anxiety, then imagine what's going on in other places.

Di Martin: In the legal profession, progress has been painstakingly slow. It's an intensely competitive and high pressure environment, and surveys show that one in three lawyers suffers depression. It's a record that Marie Jepson is working doggedly to change. She's not a lawyer, but began lobbying for reform because of personal tragedy. Her youngest son Tristan developed severe depression at law school, and suicided soon after starting work as a solicitor. Marie Jepson says it was only after her son died that she learned how widespread the problem is.

Marie Jepson: After Tristan died we had a bit of a gathering for some of his friends at our home. And while the guys were having a beer with my husband, their girlfriends were talking to me in the kitchen, and they said that each of their partners suffered from depression, had sworn them to secrecy, and had refused to seek help. And when they had all gone I said to George, my husband George, I said, 'Hey, it's not just Tristan, this is a bigger thing.'

Di Martin: The Jepsons soon established a foundation to tackle mental health in the law. Last year it released a list of 13 best-practice guidelines, and so far 87 law organisations have endorsed them. The guidelines include good, clear management, support for staff, and simple civility. You can find those guidelines on our website.

Marie Jepson says she is seeing improvement. Instead of just talking with human resources staff, these days managing partners are prepared to meet with her. But she's worried about the growing number of vague wellbeing programs being adopted by firms which often put the onus on employees to take action, to take up yoga, or attend a seminar on depression.

New research from the University of New South Wales says while legal firms are starting to acknowledge the problem, it's not reducing rates of mental illness in the law. The report is called 'Lawyering Stress and Work Culture'. Marie Jepson says the report shows that root and branch reform is needed.

Marie Jepson: Lawyers believe that basically their firms didn't give a damn. And that yes, there were initiatives that were put in place—fun runs, joint activities, yoga groups—usually they are short-term initiatives. The real issue however is that they are reacting to a symptom, rather than actually looking at how do we prevent this happening. And on the causes of the avoidable workplace stress (and I would just like to emphasise avoidable): a dog-eat-dog environment, excessive workload, very little ownership of the work that they have, very little support from supervisors. Those sorts of things are the causes of the stress and are really not addressed at all within firms.

Di Martin: I think you've compared it to placing the ambulance at the bottom of the cliff rather than a fence at the top.

Marie Jepson: That is exactly what it is. It's a Band-Aid. As a partner said to me, 'Well, we all know that we have values, Marie, but we all know that they don't mean anything.'

Di Martin: While lawyers and some high profile barristers have spoken publicly about their mental illness, there's been a near resounding silence from the bench. Now in what's believed to an Australian first, a sitting judge has agreed to be interviewed about his personal experience of depression.

Justice Shane Marshall specialised in industrial relations at the bar before becoming a Federal Court judge 20 years ago.

Shane Marshall: I thrived at the bar, really enjoyed the bar. I found aspects of coming to the bench very difficult, and those were the subject of most of the discussions between myself and the psychologists.

Di Martin: Justice Marshall was appointed by the Keating government to a newly created Industrial Relations Court. But it was soon abolished by an incoming Howard government, and Justice Marshall suddenly found himself adjudicating unfamiliar law in a sometimes hostile environment.

Shane Marshall: My whole life as a solicitor, barrister and even as a judge up to then apart from two refugee review cases was IR. So I had the weird experience of sitting in cases where council was reminding me of propositions that I had never heard of, and the learning curve was exponential. And there was also a feeling in some of the legal establishment that this person who had come from an industrial relations background, who acted even worse when he was at the bar on the union side of the fence, had no right being on the Federal Court when there were silks around that coveted that job. So there was a lot of whispering and I suppose people who weren't very happy about that.

Di Martin: You talked about overwork being one of the reasons for your mental illness. How have you dealt with that within the workplace?

Shane Marshall: I was just too proud to go to the Chief Justice and say I need help. Part of that was just the way I was brought up. Dad was a wharfie and Mum was a migrant factory worker. I was taught never to show any sign of weakness. If there was an issue, you just tough it through. So it was very difficult to admit there was something wrong. I had a very supportive doctor who just threatened to drag me to a psychologist connected to his practice if I didn't make the first appointment. And but for that I probably would never have gone.

Di Martin: If you've found it difficult, how did your fellow jurists respond to your disclosure?

Shane Marshall: Most of them pretty well. There's a couple I'm not sure, they haven't spoken to me about my decision to go early or anything to do with the publicity about coming out. I don't know whether that's disapproval or whether they find it difficult to deal with it, or I have inadvertently offended them in some other way.

Di Martin: What's your assessment of where the legal profession finds itself in tackling the high rates of depression and anxiety within its own ranks?

Shane Marshall: I'm really concerned about where the legal profession is heading. I hear stories anecdotally about seasonal clerks, these are people who are law students going into work for law firms where they're…I thought they were just supposed to go and watch and observe what happened...being abused by partners for doing work that is not up to the standard that the partner wanted and having documents ripped up in front of them.

I mean, I've also heard anecdotal stories of partners screaming at lawyers, I've heard gutsy young kids, including one I mentored, going to a top tier law firm and saying, 'I was forced to work the last two weekends. There is an industrial award, this is what I am entitled to and you've got to pay me overtime for this period.' And the response by a senior associate was, 'You can put that to the partner of our section at your peril. If you expect this firm to comply with that award you've got no future here.' Now, that's a major top tier law firm breaching the industrial law of the country.

Di Martin: Is this the norm?

Shane Marshall: It's hard for me to say it's the norm. There's enough anecdotal evidence from the people I mentored and from former associates to say that there's a problem.

Di Martin: What would that indicate needs to happen?

Shane Marshall: I think it starts at law school. I think there needs to be more emphasis on subjects on mindfulness and subjects on mental health and well-being. And I also think it's got to come from the very top, from the managers of the huge law firms. The problem is many of them are mega-firms with international headquarters.

Di Martin: Just spell out how that makes it difficult.

Shane Marshall: Got hundreds of partners, and I was told that it's very complex because the particular person said that their firm had international headquarters in London but it was something they were starting to become alarmed by and needed to reassess.

Di Martin: And did they discuss what they were alarmed by?

Shane Marshall: Yes, by the growing numbers of mainly young lawyers coming to them from law school with issues and developing issues and not responding well to pressures of billable hours and the like.

Di Martin: Do you see this issue getting worse?

Shane Marshall: Undoubtedly. Undoubtedly. I think it's almost…one is almost tempted to go to law school and put up a sign up, 'Beware: toxic profession' [laughs]. It's all very well for me to say that now that I'm on the way out, but things are definitely much tougher and this is a space that needs to be talked about a lot more.

Shane Marshall: Justice Shane Marshall, who is now on leave pending his retirement later this year.

I'm Di Martin and you're listening to Background Briefing on RN, and a program on what's been called the workplace health and safety issue of our generation; mental illness.

At the forefront of working out how to avoid psychological injury in the workplace is Sam Harvey. He's a psychiatrist and researcher at the University of New South Wales and the Black Dog Institute. Dr Harvey says while there's a new wellness initiative around every corner, there's little evidence to say what works. And he's concerned that organisations are buying in quick fixes.

Sam Harvey: People like simple solutions. And I think mental health isn't simple, and I think that's how we've got into a situation where in spite of the fact that we are talking about workplace mental health more, you have more people going up off work now for mental health problems than we did five years ago.

Di Martin: So Sam Harvey is setting out to measure what reforms are effective, and what aren't. He's launching a project across several male dominated industries, including emergency services and construction. Dr Harvey says men are particularly reluctant to discuss mental health issues. He's already been training managers about how to raise these often difficult conversations. And an app is being developed that allows people to work out the early warning signs of mental illness, just like they'd get advice about avoiding physical problems.

Sam Harvey: Where you go to a GP and they say, 'Look, you don't have heart disease yet, but we need to look at your cholesterol and your blood pressure because we know that will help keep you well in the future.' So we are hoping that this will be a similar thing with mental illness where a lot of workers will be able to engage with this app and the type of feedback that they will get is, look, you are not depressed or anxious at the moment. But in an individual case it might be you need to have a look at your sleep and perhaps the way you handle these types of stressful situations, and if you can do that, that will reduce your risk of going forwards, and here is some things that you can do on your phone, on the internet, that we think will help with that.

Di Martin: But Sam Harvey says no one reform will work in isolation. He says success depends on changing workplace culture. He's particularly scathing about organisations that only offer an employee assistance program, where an outside consultancy is hired to provide staff a limited number of free counselling sessions.

Sam Harvey: There has been a sense that if you are ticking that box then you have probably got this covered. And the problem is that's not true. It allows the problem to be outsourced. This is not something that you can just buy in an external solution to patch on. If it's going to work it has to be part of what the whole company is doing, and it has to have senior people involved. And unless you have it built in to the structure and decision-making, then employees can see that this is something that's just been put in there as a patch and is not a genuine attempt.

Di Martin: In downtown Melbourne, a midsize financial services company is not into quick fixes. Its founder and executive chairman is John Hopkins, who shows us through.

John Hopkins: There's two levels here, Di. This level is the financial services side and the property investment side. So we have financial planners here…

Di Martin: John Hopkins has recently gone public about his long battle with depression, one of the very few Australian business leaders who has.

John Hopkins: If you are at a senior level you can't admit weakness. It's just something that is not done.

Di Martin: Did you fear consequences for your business by disclosing?

John Hopkins: Yes, yes I did. So, very much I thought it might impact business. In fact I think it has had the opposite effect. The compliments that we get as an organisation for being involved, they are really strong.

Di Martin: John Hopkin's depression didn't originate in the workplace, but he's determined his company won't make others ill. He makes a point of meeting everyone on staff, and moves easily around the building, knowing people's names and their background.

John Hopkins: How are you?

Naticia: I'm great, how are you?

John Hopkins: Good.

Naticia is one of our latest financial planners. And she's studied and passed all her exams and we're so proud of her and now dealing with her own clients. And it's working a treat, isn't it.

Naticia: It is. I thought it would be a lot more scarier than it is. But I've had really good mentors. I've got Michael and Ray, so it has been an easy ride.

Di Martin: Mentoring is just one of the systems in place to encourage mental health. But John Hopkins says fostering open communication is what's critical.

John Hopkins: The first thing is we encourage openness. Every year we have a cultural survey, every year we have staff satisfaction surveys, separate thing. We don't insist everybody does it, but we want everybody to do it. We go back to our people and we say these are the results and these are the things we are doing in regard to the results. We have independent people who do those two surveys for us. In addition to that we make certain everybody knows the organisation cares about them and theirs. That means their family, whatever their family is.

Di Martin: Regular reviews are held between managers and staff, which mean that professional and personal issues can be raised.

John Hopkins: We've have had some awful circumstances over the last three or four years. One of the most important and beautiful young ladies had terrible prenatal depression and then postnatal depression at a very serious level, and she comes back here and works with us now and it's fantastic, and I can say there has been quite an involvement of all the way through. When things were really, really bad, there was involvement from our organisation. So there has to be a genuine intent and a genuine involvement to not just make the broad statements, put in the surveys, it has to come right down to handling and being involved with individuals to help them.

Di Martin: The John Hopkins Group is still a rarity amongst workplaces. A senior Victorian public servant says it's more often individuals like herself that are taking action. Maria Katsonis is an advisor in Premier and Cabinet and speaks publicly about her chronic depression. In doing so, she's noticed a paradox, that growing public awareness is not defeating entrenched stigma.

Maria Katsonis: Where we have made no progress whatsoever is in the area of stigma in the workplace for people with a mental illness.

Di Martin: So what is going on there?

Maria Katsonis: I'm going to quote the Greeks on this, being of Greek background myself, I think it is a form of xenophobia. It's the fear of the unknown. It's their fear of not understanding what living with a mental illness involves and how it can be accommodated.

Di Martin: Maria Katsonis is writing a book about her experiences to help drag the issue of mental health into the spotlight. She says the more we talk about it, the safer workplaces will be. Maria Katsonis remembers the fear she felt when she disclosed her own illness, but says it's been a strong catalyst for change.

Maria Katsonis: I held a staff meeting about a week after I came back, and I felt 15 pairs of eyes boring into me. What's coming? What's coming? What's coming? And I said the reason why I was away for so long was I had a psychiatric illness, a very severe case of depression, and I was in hospital and it was very unpredictable as to when I went back. And there was absolute silence. No one said a word.

And later that afternoon, it was remarkably quiet in the part of the building, and I went to my office and I thought oh my god, what have I done, what have I done? And then a member of my team sent me an e-mail and it said something like, 'Thank you so much for your courage in telling us about your illness. I have had friends who have experienced something and I'm really grateful that you shared with us.' And I knew that I had done the right thing when I got that. And those people that I was on committees with started to disclose to me either their own experience of mental illness, or their mother, their father, their brother, their sister, their aunt, their uncle or their niece. I had people who were distant colleagues tell me about relatives who had suicided. It was as if I had lifted the lid on something and I became a lightning rod and a collector of other people's stories. So that is my experience of disclosure.

Di Martin: If this program has raised concerns or if you need support, contact Lifeline on 13 11 14, or Beyond Blue on 1300 22 4636.